The Virtues of Sampling, Copyright and 'Big Pimpin''

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read More.

Everything came from Egypt, according to the ancient Athenians -- and apparently that includes “Big Pimpin’,” one of Jay Z’s early hit singles. The beat under the rap was laid down by Timbaland, who was on his way to becoming the superproducer he is now, and it relied on a sample from an Egyptian song from the 1950s. On Wednesday, in federal court in Los Angeles, where he's being sued for copyright infringement, Jay Z acknowledged the borrowing but said he’d credited the song’s author, Egyptian composer Baligh Hamdi.

The real story is more complicated -- and more interesting. The original version of “Big Pimpin’” didn’t, it seems, credit the Arabic song, “Khosara Khosara.” A 2000 story in the Egyptian newspaper Al-Ahram drew attention to the borrowing. At the time, Timbaland told a reporter that he thought he’d heard the tune at a carnival. “Then we hired an old guy to play it on an Arabian flute,” Timbaland said.

Whether Timbaland’s statement at the time was true or not isn’t at issue in the lawsuit. In 2001, after the story was publicized, Jay Z and Timbaland acquired rights to use the beat from EMI Arabia, which claimed to own the rights under a 1995 license from the composer’s heirs.

The suit at trial now was filed in 2007 by one of the heirs. It relies heavily on the moral rights of the author, a feature of Egyptian copyright law that’s common in civil law countries influenced by European legal codes, but doesn't exist under U.S. law. The heir’s claim is, at least in part, that the moral right to control the uses of the art should allow him to block Jay Z’s song about the virtues of pimpin’ as an existential act. (Doubtless, however, the heir is willing to take money damages in lieu of an outright ban.)

Comparing the songs, and the videos associated with them, is an entertaining object lesson in cultural difference and change over time. “Khosara Khosara” was sung in a 1957 movie, “Fata Ahlami” (Dreams of Youth), by a famous Egyptian singer named Abdel Halim Hafez. In the clip, Hafez’s character, can’t sleep for love. Getting out of bed and putting a sumptuous dressing gown over his pajamas, he sings about his love while lolling in a deck chair by a swimming pool.

Simultaneously, the woman can’t sleep either. She trades her sleeveless, sheer white silk nightgown for a flowered off-the-shoulder dress and wanders out to the pool where she finds Hafez. He commences a polite, insistent seduction, all the while singing of his love. She resists coyly, or as coyly as she can in the middle of the night by the pool in a skin-baring dress. As they prepare to kiss, they’re hilariously interrupted by a male relative of hers carrying a loaded shotgun. The whole scene, in its way a classic of 1950s Egyptian cinema, is almost impossible to picture in the light of today’s Egypt with its coups, religious conservatism and repression.

In contrast, the “Big Pimpin’” video requires little description. The song borrows none of the original song’s lyrics or its singing style. What’s been taken is the orchestral backing with its insistent repetition and memorable beat. We see Jay Z on a yacht with bikini-clad women dancing, then we see Carnival in a Caribbean location. Later we’re at the beach -- more bikinis, more shaking.

In one sense, “Big Pimpin’” as an anthem of sex without connection, runs contrary to the romantic idealism of “Khosara Khosara.” It's a fascinating commonality, though, that both songs use the rhythm of sexual desire, albeit in different ways. In the Egyptian original, it’s the insistent pressure of love and seduction. In the American version, it’s sex as a recurrent way of life. Each approach has something to say for itself, artistically and ethically.

There are lessons lurking here. For one, creativity means drawing on all sources from all places, all over the world. Credit should be tracked down where possible, and compensated when legal rights are in play. But perfection is never going to be possible. Wherever Timbaland got the beat, it’s a good thing he did.

As for moral rights of authors, it’s hard to say that they should justify compensating Hamdi’s heirs. The original song, as portrayed in the film, is after all about sex. It’s now had an afterlife that Hamdi never could’ve imagined or predicted, but the context is still sex. Hamdi might not have applauded the details, but it’s clear he would’ve understood the general message.

Finally, copyright lawsuits aren’t always a bad thing. They can tell us new stories and unravel the creative process in all its complexity. Intellectual property suits are now a common feature of an artistic world made of borrowings, hybrids and cross-pollination. Long live the sample -- and the credit that should go with it.

The original article, by Tarek Atia, isn’t on the Al-Ahram website anymore but can be seen here.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read more